The U.S. Court of Appeals for the Fourth Circuit, in a case from Maryland, recently held that a female employee who was falsely accused in the workplace of having slept her way to a promotion, could bring hostile work environment and retaliatory termination claims against her former employer. Here, these false rumors persisted in the workplace, even being spread by a manager. The opinion discusses at length why such false rumors are discriminatory, because they are invariably about women in the workplace and reflect stereotypes about women.
Some excerpts follow –
Parker v. Reema Consulting Services, Inc., No. 18-1206, __F.3d __, (4th Cir. Feb. 8, 2019)
In this appeal, the central question presented is whether a false rumor that a female employee slept with her male boss to obtain promotion can ever give rise to her employer’s liability under Title VII for discrimination “because of sex.” We conclude that the allegations of the employee’s complaint in this case, where the employer is charged with participating in the circulation of the rumor and acting on it by sanctioning the employee, do implicate such liability. Therefore, we reverse the district court’s order dismissing Count I of the complaint, which makes a claim on that basis, as well as Count II, which alleges retaliation for complaining about such a workplace condition. We affirm, however, the court’s dismissal of Count III because the employee failed to exhaust that claim before the Equal Employment Opportunity Commission. . . .
. . . . About two weeks after Parker assumed that position, she learned that “certain male employees were circulating within RCSI” “an unfounded, sexually-explicit rumor about her” that “falsely and maliciously portrayed her as having [had] a sexual relationship” with a higher-ranking manager, Demarcus Pickett, in order to obtain her management position. The rumor originated with Donte Jennings, another RCSI employee, who began working at RCSI at the same time as Parker and in the same position. Because of her promotions, however, Parker soon became Jennings’ superior, making him jealous of and ultimately hostile to her achievement.
The highest-ranking manager at the warehouse facility, Larry Moppins, participated in spreading the rumor. In a conversation with Pickett, Moppins asked, “hey, you sure your wife ain’t divorcing you because you’re f–king [Parker]?” As the rumor spread, Parker “was treated with open resentment and disrespect” from many coworkers, including employees she was responsible for supervising. As she alleged, her “work environment became increasingly hostile.” . . .
. . . . [Employer] argues that this rumor was not “gender specific” but rather was “solely about [Parker’s] conduct and insufficient to support claims of an illegal hostile work environment for women.” Because “[t]here is no dispute that Parker believes that the rumor was started ‘by a co-worker who was jealous of her success at the company’ and not because she was a woman,” it thus contends that because “there is no doubt that his rumor was solely about her conduct” and could have been levelled against a man, it is insufficient to support a claim of discrimination based on sex.
We conclude, however, that RCSI’s argument fails to take into account all of the allegations of the complaint, particularly those alleging the sex-based nature of the rumor and its effects, as well as the inferences reasonably taken from those allegations, which must be taken in Parker’s favor, as required at this stage of the proceedings. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).
As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception – one that unfortunately still persists – that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as “sluts” or worse, prostitutes selling their bodies for gain. See McDonnell v. Cisneros, 84 F.3d 256, 259-60 (7th Cir. 1996) (concluding that rumors of a woman’s “sleeping her way to the top” “could constitute a form of sexual harassment”); Spain v. Gallegos, 26 F.3d 439, 448 (3d Cir. 1994) (concluding that a rumor that a woman gained influence over the head of the office because she was engaged in a sexual relationship with him was sufficient to allow a reasonable jury to conclude the a woman suffered the harassment alleged because she was a woman); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51, 258, 272-73 (1989) (plurality and concurring opinions) (noting that gender stereotypes can give rise to sex discrimination in violation of Title VII).
The complaint not only invokes by inference this sex stereotype, it also explicitly alleges that males in the RCSI workplace started and circulated the false rumor about Parker; that, despite Parker and Pickett’s shared tardiness, Parker as a female, not Pickett as a male, was excluded from the all-staff meeting discussing the rumor; that Parker was instructed to have no contact with Jennings, her male antagonist, while Jennings was not removed from Parker’s workplace, allowing him to jeer and mock her; that only Parker, who complained about the rumor, but not Jennings, who also complained of harassment, was sanctioned; and that Parker as the female member of the rumored sexual relationship was sanctioned, but Pickett as the male member was not.
In short, because “traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,” it is plausibly alleged that Parker suffered harassment because she was a woman. Spain, 26 F.3d at 448; see also Price Waterhouse, 490 U.S. at 250-51, 258, 272-73 (plurality and concurring opinions); McDonnell, 84 F.3d at 259-60; cf. Passananti v. Cook Cty., 689 F.3d 655, 665-66 (7th Cir. 2012) (noting that use of the word “bitch” to demean a female can support a sexual discrimination claim even though the word may sometimes be directed at men); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 810 (11th Cir. 2010) (en banc) (same); Chadwick v. WellPoint, Inc., 561 F.3d 38, 47 (1st Cir. 2009) (finding actionable the denial of a promotion because the employee was a working mother with young children); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119-21 (2d Cir. 2004) (same).
Thus, the dichotomy that RCSI, as well as the district court, purports to create between harassment “based on gender” and harassment based on “conduct” is not meaningful in this case because the conduct is also alleged to be gender-based. We conclude that, in overlooking this, the district court erred.
. . . . Accordingly, because Parker’s complaint plausibly alleges a hostile work environment claim under Title VII for discrimination because of sex, we reverse the district court’s ruling dismissing Count I.
The district court also dismissed Parker’s retaliatory termination claim alleged in Count II, holding that “because the complaint fails to establish that the matters alleged in [Count I] were discriminatory, [Parker] has failed to establish . . . that her belief [that she was subject to gender discrimination] was objectively reasonable and, therefore, she cannot establish a prima facie case of retaliation.” Because we conclude that the complaint does indeed allege a plausible claim of a hostile work environment based on sex, in violation of Title VII, we reverse the dismissal of Count II alleging a retaliatory termination claim. See Boyer-Liberto v. Fountainebleau Corp., 786 F.3d 264, 285 (4th Cir. 2015) (en banc) (holding that because alleged harassment met elements of hostile work environment claim, complaining about such harassment was necessarily protected activity for purpose of retaliation claim).
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